GrandParent visitation

MEMORANDUM




GRANDPARENTS RIGHTS

5/11/2010



Grandparenting Time

Source Michigan Family Law Bench Book

A. When a Grandparent May Seek an Order



Legislation was passed in 2005 restating Grandparents rights . Under the amended statute, MCL 722.27b, a grandparent may seek grandparenting time for one of the following reasons. These elements are here restated in the form a question .



GRANDPARENTS NAME





YOUR CHILD



THE OTHER PARENT OF YOUR GRAND CHILD





THE NAME (S) OF GRAND CHILDREN.



1



2



3



4



(a) IS an action for divorce, separate maintenance, or annulment involving the child’s parents is pending before the court?

[]NO

[]YES. [] COUNTY GENESEE [] COUNTY OTHER





(b) ARE the child’s parents are divorced, separated under a judgment of separate maintenance, or have had their marriage annulled; [] NO, []YES, WHAT COUNTY







(c) IS the child’s parent who is a child of the grandparents is deceased;[]NO[]YES







(d) HAVE the child’s parents have never been married, they are not residing in the same household, and paternity has been established;[]NO[]YES







(e) HAS legal custody of the child has been given to a person other than the child’s parent or the child is placed outside of and does not reside in the home of a parent; []NO[]YES, WHO







(f) HAS THE PRANDPARENTin the year preceding the commencement of the action for grandparenting time, the grandparent provided an established custodial environment for the child, whether or not the grandparent had custody under a court order.[]NO[]YES, EXPLAIN

MCL 722.27b(1).







The statute creates a presumption that a fit parent’s decision to deny grandparenting time does not create a substantial risk of harm to the child’s mental, physical, or emotional health.

WILL THE CHILDS PARENTS OPPOSE YOUR SEEKING GRANDPARENTING TIME?[]NO[]YES, WHY















To rebut the presumption, a grandparent must prove by a preponderance of the evidence that the parent’s decision to deny grandparenting time creates a substantial risk of harm to the child’s mental, physical, or emotional health.



WHY WOULD YOUR GRANDCHILDREN NOT SEEING YOU CAUSE HARM TO THEM? DESCRIBE,



















If the grandparent does not overcome the presumption, the court will dismiss the action. MCL 722.27b(4)(b). The court may also dismiss the action if two fit parents sign an affidavit stating that they both oppose an order for grandparenting time. MCL 722.27b(5).

To ensure that the statute is not found unconstitutional, the legislature included an alternative burden of proof. If the current preponderance of the evidence test is successfully challenged in an appellate court, the statute will convert to a clear and convincing evidence test. MCL 722.27b(4)(c).

The statute survived an as-applied constitutional challenge in Keenan v Dawson, 275 Mich App 671, 739 NW2d 681 (2007) (trial court’s decision to award grandparenting time, which was based on evidence and in consideration of statutory presumption in favor of defendant’s decision, did not improperly interfere with defendant’s constitutional right to raise child as he sees fit). The statute also survived substantive due process, procedural due process, and equal protection claims in Brinkley v Brinkley, 277 Mich App 23, 742 NW2d 629 (2007) (grandparents have no fundamental constitutional right to relationship with their grandchildren, nor do grandchildren have fundamental right to maintain relationship with their grandparents against their parents’ wishes).

If the court finds that a grandparent has met the standard for rebutting the presumption, the court will consider whether it is in the best interests of the child to enter an order for grandparenting time. In determining the best interests of the child, the court will consider the ten factors set forth in MCL 722.27b(6).



The court shall consider whether it is in the best interests of the child to enter an order for grandparenting time. If the court finds by a preponderance of the evidence that it is in the best interests of the child to enter a grandparenting time order, the court shall enter an order providing for reasonable grandparenting time of the child by the grandparent by general or specific terms and conditions. In determining the best interests of the child under this subsection, the court shall consider all of the following:

DESCRIBE THE FOLLOWING

(a) The love, affection, and other emotional ties existing between the grandparent and the child.







(b) The length and quality of the prior relationship between the child and the grandparent, the role performed by the grandparent, and the existing emotional ties of the child to the grandparent.









(c) The grandparent's moral fitness.









(d) The grandparent's mental and physical health.









(e) The child's reasonable preference, if the court considers the child to be of sufficient age to express a preference.









(f) The effect on the child of hostility between the grandparent and the parent of the child.









(g) The willingness of the grandparent, except in the case of abuse or neglect, to encourage a close relationship between the child and the parent or parents of the child.









(h) Any history of physical, emotional, or sexual abuse or neglect of any child by the grandparent.









(i) Whether the parent's decision to deny, or lack of an offer of, grandparenting time is related to the child's well-being or is for some other unrelated reason.









(j) Any other factor relevant to the physical and psychological well-being of the child.









The parent of a father who has never been married to the child’s mother may not seek an order for grandparenting time unless the father completes an acknowledgment of parentage, a court issues an order of filiation, or the father is determined to be the father by a court. MCL 722.27b(2). Further, the parent of a putative father may not seek grandparenting time unless the putative father has provided substantial and regular support or care in accordance with his ability to provide the support or care.



B. Procedure



HAVE YOU SOUGHT GRANDPARENTING TIME IN THE LAST TWO YEARS []NO[]YES, DESCRIBE





Under the grandparenting time statute, a grandparent may not file more than once every two years seeking a grandparenting time order. If there is a showing of “good cause,” the court may consider a filing despite the two-year restriction. The court may order reasonable attorney fees to the prevailing party. MCL 722.27b(8).

A request for grandparenting time is initiated either by filing a motion, if the circuit court has continuing jurisdiction over the child, or if the circuit court does not have continuing jurisdiction, by filing a complaint in the circuit court for the county where the child resides. MCL 722.27b(3). The motion or complaint must allege that the parent’s denial of grandparent visitation creates a substantial risk of harm to the child’s mental, physical, or emotional health. MCL 722.27b(4)(b). The motion or complaint must be accompanied by an affidavit setting forth facts supporting the requested order. MCL 722.27b(4)(a).

The grandparent is obligated to give each person with legal custody of the grandchild notice of the motion or action. Parties with legal custody of the grandchild may file opposing affidavits. Id.

A party may request a hearing on the motion or complaint, or the court may order a hearing sua sponte. If a hearing is requested, the court must order it. At the hearing, any party submitting an affidavit or a counter affidavit must be “allowed an opportunity to be heard.” Id.

The statute directs that a “fit” parent’s decision to deny grandparenting time is presumed not to create a “substantial risk of harm to the child’s mental, physical, or emotional health.” To rebut this presumption, the grandparent seeking visitation must prove by a preponderance of the evidence that the parent’s decision to deny grandparenting time does create such a risk. If the grandparent cannot overcome the presumption, the request for visitation must be denied. MCL 722.27b(4)(b).

If the grandparent successfully rebuts the presumption that the parent’s denial of visitation does not create such a substantial risk, the court moves to the second step of the two-step process. Specifically, if the court finds that the grandparent has rebutted the presumption, it must then consider whether it is in the best interests of the child to enter an order for grandparenting time. If the court finds by a preponderance of the evidence that this is the case, the court must enter an order for “reasonable grandparenting time.” MCL 722.27b(6).

Alternatively, if the grandparent overcomes the presumption, the court may refer the request for grandparenting time to domestic relations mediation, governed by MCR 3.216. If the matter is referred to Friend of the Court alternative dispute resolution, but the Friend of the Court is not able to reach a voluntary resolution within a “reasonable time,” the court itself must hold a best interests hearing. MCL 722.27b(7). The new law does not suggest any time line that would satisfy the reasonable time standard.

The court must make a record of its analysis and findings, including the reasons for granting or denying the visitation request. MCL 722.27b(12).

C. Modification or Termination of a Grandparenting Time Order



MCL 722.27b provides that a court may not modify or terminate a grandparenting time order unless it finds by a preponderance of the evidence, on the basis of facts arising since the entry of the grandparenting time order or facts that were unknown before the order, that there has been a change of circumstances of the child or the child’s custodian and that modification or termination of the existing grandparenting time order is needed to avoid a substantial risk of harm to the mental, physical, or emotional health of the child. MCL 722.27b(11). The court must a make a record of its analysis and findings regarding whether an existing grandparent visitation order should be modified or terminated, including the reasons for granting or denying the visitation request. MCL 722.27b(12).

A court may not prevent a parent from changing a child’s domicile solely to allow the exercise of grandparenting time. MCL 722.27b(9).

Absent a showing of good cause, a grandparent is barred from filing an action or motion for grandparenting time more than once every two years. However, if the court finds “good cause,” it may permit more than one motion or action within this two-year period. MCL 722.27b(8). The court must make a record of its analysis and findings regarding whether good cause to file a premature request for visitation exists, including the reasons for granting or denying the visitation request. MCL 722.27b(12).





Posted here

05/11/2010

Terry Bankert

http://www.attorneybankert.com/